# State v. Carr

> Supreme Court of Kansas · January 21, 2022 · 502 P.3d 546

URL: https://www.frixlaw.com/law-library/cases/6105527

## Case

- **Court:** Supreme Court of Kansas
- **Decided:** January 21, 2022
- **Citations:** 502 P.3d 546
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6105527

## How later opinions describe it (automated extraction)

- holding the constitutionality of a statute is a question of law subject to unlimited review

## Opinion text

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 90,044

STATE OF KANSAS,
Appellee,

v.

REGINALD DEXTER CARR JR.,
Appellant.

SYLLABUS BY THE COURT

1.
Whether a statute is constitutional is a question of law.

2.
Section 1 of the Kansas Constitution Bill of Rights states, "All men are possessed
of equal and inalienable natural rights, among which are life, liberty, and the pursuit of
happiness." The rights guaranteed under section 1 are judicially enforceable against
governmental action that does not meet constitutional standards.

3.
The court applies a two-part framework to determine whether an asserted right or
declared interest under section 1 of the Kansas Constitution Bill of Rights is judicially
enforceable. First, the court determines whether the asserted right or declared interest is
included within the guarantees or protections of section 1. Under this step, the court
begins by carefully describing the asserted right. Then, it determines whether that
asserted right or declared interest is protected under section 1 by looking to the language
of the Kansas Constitution. When the words themselves do not make the drafters' intent

1
clear, courts look to the historical record, remembering the polestar is the intention of
the makers and adopters. If the asserted right or declared interest is established under
section 1, the court proceeds to the second part of the framework—exploring whether the
governmental action impairs the right and, if so, whether such governmental action
satisfies constitutional scrutiny.

4.
The historical record reflects the framers did not intend the term "inalienable" in
section 1 of the Kansas Constitution Bill of Rights to be construed as "absolute" and
"nonforfeitable." Instead, a careful reading of section 1, coupled with the transcripts of
the convention debate, demonstrates that the term "inalienable" refers only to one's ability
to transfer his or her right or interest to another person. Though inalienable, the framers
viewed the natural rights guaranteed within this section to be forfeitable in civil society.
So construed, the framers did not intend for section 1 to impede or limit the State's
authority to punish individuals for their criminal conduct.

5.
Section 1 of the Kansas Constitution Bill of Rights acknowledges a person's
inalienable right to life, but that right is not absolute or nonforfeitable. Once a defendant
has been convicted of capital murder beyond reasonable doubt, the defendant forfeits his
or her natural rights under section 1 ("among which are life, liberty, and the pursuit of
happiness") and the state may impose punishment for that crime pursuant to the
provisions of Kansas' capital sentencing scheme.

6.
Once a defendant has been lawfully convicted of capital murder, the imposition of
a capital sentence does not implicate section 1. However, other constitutional guarantees,
including those contained in sections 9 and 10 of the Kansas Constitution Bill of Rights,

2
continue to regulate the state's authority to punish and guard against arbitrary applications
of such authority.

7.
Section 5 of the Kansas Constitution Bill of Rights, which provides that "[t]he
right of trial by jury shall be inviolate," preserves the jury trial right as it historically
existed at common law when our state's Constitution came into existence.

8.
In ascertaining the meaning of a constitutional provision, the primary duty of the
courts is to look to the intention of the makers and adopters of that provision. A
constitutional provision is not to be narrowly or technically construed, but its language
should be interpreted to mean what the words imply to persons of common
understanding.

9.
As used in section 5 of the Kansas Constitution Bill of Rights, the term "jury"
denotes a legally selected group of persons sworn to determine issues of fact and return a
decision based on the evidence and in accordance with the law as instructed.

10.
The process of death qualification under K.S.A. 22-3410 removes only those
prospective jurors who are excluded from the constitutional definition of a "jury," and
therefore neither the statute nor the process of death qualifying the jury implicate any
right protected under section 5 of the Kansas Constitution Bill of Rights.

3
11.
Section 5 of the Kansas Constitution Bill of Rights does not require that juror
qualification or selection standards enacted by the Legislature be affirmatively authorized
by the common law. Rather, that provision merely preserves the right to jury trial as it
existed at common law when the Kansas Constitution was adopted.

12.
When reviewing the legal propriety of penalty phase instructions addressing
mitigating circumstances, the court must consider whether the instructions, considered
together as a whole, fairly and accurately state the applicable law, and whether a jury
could have been misled into not considering certain mitigating circumstances that, by
law, should have been considered.

13.
K.S.A. 21-4624(e), now codified as K.S.A. 2020 Supp. 21-6617(e), does not
require a jury to be instructed on the burden of proof for mitigating circumstances in the
penalty phase of capital sentencing proceedings, overturning the holding in State v.
Cheever, 306 Kan. 760, Syl. ¶ 5, 402 P.3d 1126 (2017).

14.
Under the law of the case doctrine, when a second appeal is brought to this court
in the same case, the first decision is the settled law of the case on all questions involved
in the first appeal, and reconsideration will not normally be given to such questions.

4
15.
State law error during the penalty phase of a capital murder trial may be deemed
harmless where the party benefitting from the error shows there is no reasonable
probability the error affected the jury's ultimate conclusion regarding the death sentence
verdict.

16.
The avoidance-of-arrest statutory aggravating circumstance, K.S.A. 2020 Supp.
21-6624(e), effectively channels the discretion of the sentencer and is not facially
overbroad.

17.
In Kansas capital sentencing proceedings, the Confrontation Clause in the Sixth
Amendment to the United States Constitution applies only to testimonial hearsay relevant
to the jury's eligibility decision, i.e., evidence relevant to the existence of one or more
statutory aggravating circumstances. A defendant's confrontation rights do not extend to,
and are not implicated by, testimonial hearsay offered to impeach or rebut defendant's
mitigation witnesses.

18.
An expert's reliance on testimonial hearsay does not constitute a violation of the
Confrontation Clause in the Sixth Amendment to the United States Constitution per se.
Instead, the controlling question is whether the expert is testifying as a witness in his or
her own right or testifying as a mere "conduit" for the testimonial hearsay. The
Confrontation Clause forecloses the expert's opinion testimony only in the latter situation.
The problem of expert-as-conduit is not the amplification of multiple experts' opinions
but the fact that the so-called expert is not actually giving expert testimony.

5
19.
Under the facts of the case, the State's expert witness was not a mere conduit for
the opinions of others and thus his testimony did not violate the Confrontation Clause in
the Sixth Amendment to the United States Constitution; although the expert witness
vaguely asserted that other experts agreed with him, he offered an independent opinion
and interpretation of PET (positron emission tomography) scans based on his own
synthesis of the evidence.

20.
During the penalty phase of a capital murder trial, any error that arises solely
under state law may be deemed harmless if the court is persuaded there is no reasonable
probability the error affected the jury's ultimate conclusion regarding the weight of the
aggravating and mitigating circumstances, i.e., the death sentence verdict.

21.
The court applies a four-step analysis to review jury instruction challenges. It first
considers the reviewability of the issue, which is then followed by reviewing whether the
instruction was legally and factually appropriate. If the court concludes there is error, it
then turns to reversibility. Where a death penalty defendant fails to request or object to an
instruction, the court applies the clearly erroneous standard of review and determines
whether it is firmly convinced that the jury would have reached a different verdict had the
instruction error not occurred.

22.
Under the facts of the case, the jury instructions and verdict forms, viewed
together as a whole, made clear that "the crime" referenced in the aggravating
circumstances instruction was capital murder.

6
23.
Under the facts of the case, the jury instruction describing the verdict forms, which
improperly used a double negative in the grammatical structure of the sentence describing
the statutory weighing equation under Kansas' capital sentencing scheme, was not clearly
erroneous because the error was not readily noticeable and the jury's use of Verdict Form
1 on all counts indicated that jurors employed the proper statutory weighing equation and
determined beyond reasonable doubt that aggravating circumstances existed and
outweighed mitigating circumstances, thereby warranting a sentence of death.

24.
The district court's failure to instruct the jury that it must find the defendant was at
least 18 years old at the time of the offense, as a condition precedent to imposing the
death penalty, constitutes error. But such error is subject to a harmless error analysis.

25.
Under the facts of the case, the district court's failure to instruct the jury that it
must find defendant was at least 18 years old at the time of the offense in order to impose
capital punishment was harmless because the issue was not contested and the undisputed
evidence established that the defendant was 23 years old when the crime occurred.

26.
The district court's refusal to instruct the jury that "[y]ou must not draw any
inference of guilt from the fact that the defendant did not testify, and you must not
consider this fact in arriving at your verdict," as requested by the defendant, was not
erroneous; although the requested instruction was appropriate for the guilt phase, it was
not legally appropriate in the penalty phase after guilt had been adjudicated.

7
27.
The court applies a two-step framework in analyzing claims of prosecutorial error.
Under the first step, the court considers whether prosecutorial error occurred by
determining whether the prosecutorial acts complained of fall outside the wide latitude
afforded prosecutors to argue the State's case and attempt to obtain a verdict in a manner
that does not offend the defendant's constitutional right to a fair trial. If error is found, the
court advances to the second step and determines whether the error prejudiced the
defendant's due process right to a fair trial.

28.
When analyzing prosecutorial error claims that implicate both constitutional and
nonconstitutional claims of error, the court need only address the more demanding
federal constitutional error standard. Under the federal constitutional error standard,
prosecutorial error is harmless if the State demonstrates beyond a reasonable doubt the
error complained of did not affect the trial's outcome in light of the entire record, i.e.,
when there is no reasonable possibility the error contributed to the verdict.

29.
In analyzing claims of prosecutorial error in the penalty phase of capital
proceedings, the overwhelming nature of evidence is to be considered, but its impact is
limited. To the extent there was constitutional error, the question is not what effect the
error might generally be expected to have upon a reasonable jury but what effect it had
upon the actual verdict in the case at hand. The inquiry, in other words, is not whether,
in a trial that occurred without the error, a verdict for death would surely have been
rendered, but whether the death verdict actually rendered in this trial was surely
unattributable to the error. If more than one prosecutorial error occurred in the
proceedings, the court considers the net prejudicial effect of those errors using the same
federal constitutional error standard applied to the individual errors.

8
30.
The Eighth Amendment to the United States Constitution guarantees a capital
defendant a right to an individualized sentencing determination, meaning the sentencer
may not be precluded from considering, as a mitigating factor, any aspect of a defendant's
character or record and any of the circumstances of the offense that the defendant proffers
as a basis for a sentence less than death. It does not matter whether the barrier to the
sentencer's consideration of all mitigating evidence is interposed by statute, by a trial
court's evidentiary ruling, by jury instructions, or by prosecutorial argument.

31.
A capital sentencing jury must consider all relevant mitigating evidence, and such
evidence need not excuse or justify the crime or in fact relate to the defendant's
culpability as long as it serves as a basis for a sentence less than death. But the State has a
competing interest in challenging whether a circumstance is mitigating at all and to
contest the weight the jury should give to a mitigating circumstance.

32.
It is improper for a prosecutor to argue that certain circumstances should not be
considered as mitigating circumstances because they do not excuse or justify the crime.
Mitigating circumstances are those which in fairness may be considered as extenuating or
reducing the degree of moral culpability or blame or which justify a sentence of less than
death, even though they do not justify or excuse the offense. A prosecutor who argues
that mitigating circumstances must excuse or justify the crime improperly states the law.

33.
A prosecutor's argument concerning mitigation evidence violates requirements
under the Eighth Amendment to the United States Constitution when the State cuts off in

9
an absolute manner the sentencer's consideration of such evidence. But comments that the
defendant's mitigating evidence is entitled to little or no weight based on the
circumstances of the case are constitutionally permissible.

34.
A prosecutor may properly argue a defendant is undeserving of mercy, so long as
there is no contention the jury's exercise of mercy is prohibited.

35.
Under the facts of the case, the prosecutors' argument did not misstate the law
concerning mitigating circumstances where the prosecutor never argued or implied the
jury could not consider the mitigation evidence unless it excused or justified the murders;
while the prosecutor questioned whether that mitigation justified the defendant's conduct,
this was consistently argued in the context of whether the circumstance reduced the
defendants' moral culpability or blame in a way that supported a sentence less than death;
and the defendants first suggested a relationship between the crimes and the mitigation
evidence by arguing a variety of medical, genetic, familial, environmental, societal, and
situational circumstances caused the defendants to commit the crime.

36.
Generally, a prosecutor is precluded from offering personal opinions about witness
credibility, and the court has applied the same rule in capital sentencing proceedings.

37.
Under the facts of the case, the prosecutor's statement "when the truth comes out"
was an impermissible expression of opinion intended to bolster the credibility of the
State's expert witness, but the death penalty verdict was surely unattributable to this

10
isolated comment, which was a clumsy effort to turn a phrase more than a definitive
statement about the "truth."

38.
In the penalty phase of a capital murder trial, a prosecutor may argue that a
defendant deserves no mercy because he or she showed none to the victims, as long as
the prosecutor does not argue the jury is precluded from considering mercy in its
sentencing decision.

39.
Generally, a prosecutor has wide latitude in crafting arguments. Nevertheless, the
arguments must accurately reflect the evidence, accurately state the law, and cannot be
intended to inflame the passions or prejudices of the jury or to divert the jury from its
duty to decide the case based on the evidence and the controlling law.

40.
A "golden rule" argument is the suggestion by counsel that jurors should place
themselves in the position of a party, a victim, or the victim's family members. Such
arguments are generally improper and may constitute reversible error. The reason
"golden rule" arguments are not permitted is because they encourage the jury to depart
from neutrality and to decide the case on the improper basis of personal interest and bias.

41.
Under the facts of the case, the prosecutor did not make an improper "golden rule"
argument by referencing the murder victims' inability to form relationships where the
argument did not place the jury in the victims' shoes, but instead responded directly to the
defendant's argument about his ability to form relationships or attachments if sentenced
to life imprisonment and implied that the jury should give little weight to this evidence.

11
42.
The wide latitude permitted a prosecutor in discussing the evidence during closing
argument in a criminal case includes at least limited room for rhetoric and persuasion,
even for eloquence and modest spectacle. It is not opening statement; it is not confined to
a dry recitation of the evidence presented.

43.
Generally, a prosecutor's argument that implies the jury may violate its sworn oath
has more force and carries greater potential for unfair prejudice than an argument that the
facts and applicable law compel a death sentence.

44.
Cumulative error analysis aggregates all errors and assesses whether their
cumulative effect is such that they cannot be determined to be harmless, even though
individually those errors are harmless. In assessing cumulative error in the penalty phase
of a capital trial, the errors aggregated include any errors in the guilt-phase proceedings
the court determines must be considered in conjunction with the penalty-phase errors. In
addition, the errors aggregated include those penalty-phase errors assumed by the court.
And they include penalty-phase jury instruction errors not raised in the district court that
are not clearly erroneous standing alone.

45.
When reviewing cumulative error in a capital penalty-phase proceeding, the
court's focus is on the errors' cumulative effect on the jury's ultimate conclusion
regarding the weight of the aggravating and mitigating circumstances. In other words, we
are looking for the errors' effect in their aggregate, recognizing errors can differ in their
individual or cumulative effect. This task is undoubtedly more subtle than simply

12
counting up the number of errors discovered. Ultimately, the court must determine
whether the errors' cumulative effect, viewed in the light of the record as a whole, had
little, if any, likelihood of changing the jury's conclusion. When any errors being
aggregated in a cumulative error analysis are constitutional in nature, the cumulative
error must be harmless beyond a reasonable doubt.

Appeal from Sedgwick District Court; PAUL W. CLARK, judge. Opinion on remand filed January
21, 2022. Affirmed.

Debra J. Wilson, of Capital Appeals and Conflicts Office, argued the cause, and Reid T. Nelson,
of the same office, was with her on the briefs for appellant.

David Lowden, special appointed prosecutor, argued the cause, and Marc Bennett, district
attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

Sharon Brett, of ACLU Foundation of Kansas, of Overland Park, and Cassandra Stubbs, pro hac
vice, and Brian W. Stull, pro hac vice, of American Civil Liberties Union Foundation, of Durham, North
Carolina, were on the brief for amici curiae Concerned Conservatives About the Death Penalty, Kansas
Coalition Against the Death Penalty, Dalton Glasscock, Steve Becker, Al Terwelp, Bob Weeks, Carolyn
Zimmerman, Celeste Dixon, Bill Lucero, Msgr. Stuart Swetland, Catholic Mobilizing Network,
Dominican Sisters and Associates of Peace of the Roman Catholic Church, Mount St. Scholastica, Sisters
of Charity of Leavenworth Office of Justice, Peace, and Integrity of Creation, Sister Christina Meyer,
Bishop Ruben Saenz Jr., Robert Sanders, Michael Birzer, and the American Civil Liberties Union and
ACLU of Kansas.

Alice Craig, of Lawrence, was on the brief for amicus curiae Midwest Innocence Project, joined
by Witness to Innocence and Floyd Bledsoe.

Elizabeth Cateforis, Clinical Professor of Law, University of Kansas School of Law, of
Lawrence, and Alexis J. Hoag, pro hac vice, Lecturer and Associate Research Scholar, Columbia Law
School, of New York, New York, were on the brief for amici curiae group of law professors and scholars.

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The opinion of the court was delivered by

WALL, J.: In State v. Carr, 300 Kan. 1, 331 P.3d 544 (2014) (R. Carr), rev'd and
remanded sub nom. Kansas v. Carr, 577 U.S. 108, 136 S. Ct. 633, 193 L. Ed. 2d 535
(2016) (Carr), our court affirmed one of Reginald Dexter Carr Jr.'s capital murder
convictions but vacated the death sentence after concluding the failure to sever the
penalty phase violated R. Carr's right to an individualized sentencing determination under
the Eighth Amendment to the United States Constitution. However, in Carr, the United
States Supreme Court held the failure to sever the defendants' penalty phase neither
implicated the Eighth Amendment nor offended protections afforded to R. Carr under the
Due Process Clause.

On remand, we now turn our attention to the penalty phase issues that remain
unresolved following the decision of the United States Supreme Court. In analyzing these
issues, we remain mindful that "given the myriad safeguards provided to assure a fair
trial, and taking into account the reality of the human fallibility of the participants, there
can be no such thing as an error-free, perfect trial, and that the Constitution does not
guarantee such a trial." United States v. Hasting, 461 U.S. 499, 508-09, 103 S. Ct. 1974,
76 L. Ed. 2d 96 (1983); see Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431,
89 L. Ed. 2d 674 (1986). While some of R. Carr's remaining issues demonstrate that his
trial was less than perfect, none suggest he received anything other than a fair trial.
Accordingly, we affirm Reginald Carr Jr.'s death sentence and hold this sentence was not
"imposed under the influence of passion, prejudice or any other arbitrary factor." K.S.A.
2020 Supp. 21-6619(c)(1).

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FACTUAL AND PROCEDURAL BACKGROUND

As noted, in its previous decision, our court affirmed one of R. Carr's capital
murder convictions but vacated his death sentence, concluding his Eighth Amendment
right to an individualized sentencing determination was violated when the district court
refused to sever the penalty phase from that of his codefendant brother, Jonathan Carr.
See R. Carr, 300 Kan. at 315. In a companion decision, this court also vacated J. Carr's
death sentence for failure to sever the penalty phase. State v. Carr, 300 Kan. 340, 371,
329 P.3d 1195 (2014) (J. Carr), rev'd and remanded Carr, 577 U.S. 108.

The court's disposition at that time made it unnecessary to complete a full review
of the alleged penalty phase errors, although it considered some for guidance on remand.
Among those considered, the court noted the same Eighth Amendment individualized
sentencing concerns were implicated when the district court failed to instruct the jury
that mitigating circumstances need not be proved beyond a reasonable doubt. That
question proved dispositive in this court's decision to vacate the death sentence imposed
in another death penalty case. See State v. Gleason, 299 Kan. 1127, 329 P.3d 1102 (2014)
(Gleason I), rev'd and remanded sub nom. Carr, 577 U.S. 108.

The United States Supreme Court granted the State's petition for writ of certiorari
on the two Eighth Amendment issues in R. Carr, J. Carr, and Gleason I. It disagreed
with our court's Eighth Amendment analysis on both issues. The Court held the joint
sentencing proceedings neither implicated the Carrs' Eighth Amendment rights nor
violated their rights under the Due Process Clause. It also concluded that the Eighth
Amendment does not require Kansas penalty-phase juries to be instructed that mitigating
factors need not be proved beyond a reasonable doubt. Carr, 577 U.S. at 122, 126.

15
Shortly after that decision, but before the United States Supreme Court issued its
mandate, R. Carr filed a motion with our court arguing that the alleged instructional error
(the district court's failure to instruct jurors that the existence of mitigating factors need
not be proved beyond a reasonable doubt) required his death sentence to be vacated under
state law. After the high Court issued its mandate, R. Carr filed another motion arguing
that cumulative error required this court to vacate his death sentence. In his separate
appeal, J. Carr also requested this court rule on the instructional issue as a matter of state
law. On the same day, he asked for additional briefing on penalty phase issues left
undecided in our prior decision. The State filed responses.

Our court ordered supplemental briefing addressing the remaining penalty phase
issues, including cumulative error. Two extensions to the briefing schedule occurred at
the State's request and were granted pursuant to Supreme Court Rule 5.02 (2021 Kan. S.
Ct. R. 32). The parties' supplemental briefs were filed simultaneously on November 7,
2016. The court heard oral argument in both cases on May 4, 2017.

In April 2019, this court filed its opinion in Hodes & Nauser, MDs v. Schmidt, 309
Kan. 610, 638, 440 P.3d 461 (2019), holding that "section 1 [of the Kansas Constitution
Bill of Rights] establishes the judicial enforceability of rights that are broader than and
distinct from the rights described in the Fourteenth Amendment." In response to that legal
development, the defendants in all the then-pending capital appeals sought leave to raise
and brief a new issue challenging the constitutionality of the death penalty under section
1 of the Kansas Constitution Bill of Rights. R. Carr and J. Carr each made this request in
motions filed on May 7, 2019.

On June 19, 2019, after having received responses from the State, we granted the
defendants, including R. Carr and J. Carr, leave to file supplemental briefing to address
"what effect, if any, the decision in Hodes & Nauser v. Schmidt . . . has on the issue of

16
whether the Kansas death penalty is unconstitutional under § 1 of the Kansas Constitution
Bill of Rights."

R. Carr and J. Carr each filed supplemental briefs on August 16, 2019. In each
case, the State filed its brief in response on October 15, 2019. J. Carr filed a reply brief on
November 7, 2019, and R. Carr followed suit the next day.

On February 18, 2021, we scheduled both R. Carr's and J. Carr's cases for oral
argument on the May 24, 2021 docket. Various amici curiae sought and were granted
permission to file briefs.

In addition, the NAACP Legal Defense and Educational Fund, Inc. (LDF) sought
leave to participate in J. Carr's oral argument as a separately represented amicus curiae. In
its amicus brief, the LDF argued Kansas' death-sentencing scheme violates the right to
trial by jury under section 5 of the Kansas Constitution Bill of Rights. We denied the
LDF's motion to participate in oral argument but ordered the parties in J. Carr's case to be
prepared to address the issue at oral argument. On July 29, 2021, after oral argument had
concluded, R. Carr filed a motion requesting the court consider the same section 5
challenge in his appeal.

As with our previous decisions, this case necessarily covers many issues we must
also decide in J. Carr's case. We provide the reasoning for our decisions here. To the
extent possible, we retain the numbering applied to the issues in our previous decision,
although some are taken up in different order. See R. Carr, 300 Kan. at 255-58.

The facts were set forth fully in this court's original decision. 300 Kan. at 17-44,
258-75. In the "Discussion" section to follow, we highlight those facts as necessary to
resolve the issues we consider today.

17
DISCUSSION

For purposes of clarity and organization, we first address the constitutional
challenges R. Carr and J. Carr asserted under section 1 and section 5 of the Kansas
Constitution Bill of Rights. Then, we address R. Carr's motion to apply state law to the
burden-of-proof instruction for mitigating circumstances. Finally, we examine the
remaining claims of penalty phase error, including cumulative error.

I. Kansas' Capital Sentencing Scheme Does Not Violate Section 1 of the Kansas
Constitution Bill of Rights

While R. Carr's and J. Carr's appeals were pending, this court released its decision
in Hodes. In Hodes, the court held that section 1 of the Kansas Constitution Bill of Rights
protects a broader range of rights than the United States Constitution. 309 Kan. 610,
Syl. ¶ 6. Based on that decision, R. Carr and J. Carr claim that Kansas' statutory scheme
authorizing capital punishment is unconstitutional under section 1. More specifically,
R. Carr and J. Carr contend section 1 protects the right to life, and Kansas' capital
sentencing scheme unconstitutionally infringes upon this right.

A. Legal Framework and Standard of Review

"'Whether a statute is constitutional is a question of law.'" Hilburn v. Enerpipe
Ltd., 309 Kan. 1127, 1132, 442 P.3d 509 (2019). Historically, this court presumed
statutes to be constitutional and required alleged constitutional violations to be clearly
established in order to overcome this presumption. 309 Kan. at 1132 (quoting Board of
Johnson County Comm'rs v. Jordan, 303 Kan. 844, 858, 370 P.3d 1170 [2016]). But in
Hodes, a majority of the court rejected this presumption of constitutionality when the
interests protected by the Kansas Constitution are deemed "fundamental interests." 309

18
Kan. at 673-74 ("Section 1 protects an inalienable natural right of personal autonomy,
which [is] fundamental. Presuming that any state action alleged to infringe that right is
constitutional dilutes the protections established by our Constitution."). Other members
of our court have repudiated the presumption altogether. See In re A.B., 313 Kan. 135,
147-48, 484 P.3d 226 (2021) (Stegall, J., concurring; Wall, J., joining concurring
opinion). Regardless, based on established precedent, we apply no such presumption to
this section 1 challenge.

Section 1 of the Kansas Constitution Bill of Rights states, "All men are possessed
of equal and inalienable natural rights, among which are life, liberty, and the pursuit of
happiness." The rights guaranteed under section 1 are "judicially enforceable against
governmental action that does not meet constitutional standards." Hodes, 309 Kan. 610,
Syl. ¶ 7.

We apply a two-part framework to determine whether an asserted right or declared
interest is judicially enforceable under section 1—exploring whether the right itself is
protected by the constitutional provision and, if so, determining whether governmental
action unconstitutionally infringes upon that right. 309 Kan. at 620. Under the first part of
this analysis, we determine whether the asserted right or declared interest falls within the
purview of rights protected by section 1. 309 Kan. at 620. "'[T]he doctrine of judicial
self-restraint'" requires us to begin with "'a careful description of the asserted right.'"
Reno v. Flores, 507 U.S. 292, 302, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993) (in
substantive due process analysis the court carefully defines the nature of the interest to
determine whether it is properly characterized as fundamental). Doing so ensures a
proper nexus exists between the asserted right or declared interest and its constitutional
foundation within section 1. Once properly defined, we examine whether that asserted
right or declared interest is protected under section 1 by looking to the language of the
Kansas Constitution. State v. Albano, 313 Kan. 638, 644-45, 487 P.3d 750 (2021).

19
When the words themselves do not make the drafters' intent clear, we look to the
historical record, remembering "'"the polestar . . . is the intention of the makers and
adopters."'" 313 Kan. at 645 (quoting Hunt v. Eddy, 150 Kan. 1, 5, 90 P.2d 747 [1939]).

Second, if the asserted right or declared interest is protected under section 1, we
determine whether the challenged governmental action unconstitutionally infringes upon
it. See Hodes, 309 Kan. at 660. This requires the court to first determine whether the
governmental action impairs the right. See 309 Kan. at 672. If so, the court scrutinizes the
governmental action to determine whether it passes constitutional muster. See 309 Kan.
at 662-63.

Ultimately, we conclude that R. Carr's and J. Carr's section 1 challenge fails at the
first step of this two-part framework. Their asserted right to, or declared interest in, an
absolute, nonforfeitable right to life is not included in or part of the guarantees or
protections of section 1. Instead, the natural right to life is forfeitable, and the state's
imposition of the death penalty under Kansas' capital sentencing scheme does not
infringe upon the "inalienable" right to life protected under section 1. To reach this
conclusion, we first construe the meaning of an "inalienable" right to life under section 1.
Then, we demonstrate how this construction forecloses defendants' section 1 challenge.

B. The Framers Intended the Inalienable Right to Life to Be Forfeitable, Not
Absolute

R. Carr argues section 1 guarantees a right to life that necessarily precludes the
state from imposing capital punishment. We have no hesitation recognizing a right to life
under section 1. Unlike the implicit right to personal autonomy recognized in Hodes,
which found its source in the explicit rights of liberty and the pursuit of happiness, a
natural right to life is explicitly enumerated as one of the natural rights protected by
section 1.

20
But R. Carr defines this right broadly to preclude capital punishment, even where
a jury has convicted a defendant of capital murder and determined beyond reasonable
doubt that one or more statutory aggravating circumstances exist and outweigh mitigating
circumstances, as prescribed under Kansas' capital sentencing scheme. R. Carr's argument
is premised on the assumption that the right to life guaranteed within section 1 is
absolute, meaning the law cannot limit or infringe upon this right in any circumstance.
See Merriam-Webster.com Legal Dictionary, Merriam-Webster, https://www.merriam-
webster.com/legal/absolute%20right (defining "absolute right" as "a legally enforceable
right to take some action or to refrain from acting at the sole discretion of the person
having the right").

Whether the framers intended the right to life to be absolute cannot be ascertained
solely from the text of section 1 because the plain language does not define the scope and
contours of the natural rights guaranteed therein. As such, we must also turn to the
historical record to glean insight into the scope of this right as intended by the framers.
See Hunt, 150 Kan. at 5. We do so by first exploring the comments and remarks of the
framers during the Wyandotte Constitutional Convention debates. Additionally, we
analyze the theory of natural rights as developed through the writings of John Locke and
William Blackstone, given their historic significance in the development of American
constitutional frameworks and jurisprudence. Cf. Hodes, 309 Kan. at 639-41 (discussing
Locke's and Blackstone's influence on Kansas' founding documents).

1. The Wyandotte Convention Debates

"[T]he territorial legislature of 1859 approved a fourth and final constitutional
convention" for the Kansas Territory. See Kansapedia, Kansas Historical Society,
"Wyandotte Constitutional Convention," https://www.kshs.org/kansapedia/wyandotte-

21
constitutional-convention/17884. On June 17, 1859, 52 delegates were elected to gather
in Wyandotte, Kansas, on July 5 for this constitutional convention. See Simpson, The
Wyandotte Constitutional Convention, reprinted in Kansas Constitutional Convention
652 (1920) (hereinafter Convention).

While vigorous debate over specific language was the exception, delegates did
engage in extensive discussions regarding section 1. See Perdue, Address Before the
Kansas State Historical Society: The Sources of the Constitution of Kansas, in 7 Kansas
Historical Collections 130, 134 (1902). The initial proposal for section 1, developed by
the Preamble and Bill of Rights Committee, provided:

"'SECTION 1. All men are by nature equally free and independent, and have
certain inalienable rights, among which are those of enjoying and defending their lives
and liberties, acquiring, possessing and protecting property, and of seeking and obtaining
happiness and safety, and the right of all men to the control of their persons, exists prior
to law and is inalienable.'" Convention, at 271.

After initial proposed amendments to this section were soundly rejected, including
one disreputable attempt to exclude "negroes and mulattoes" from the phrase "all men,"
one of the proslavery delegates challenged the use of the term "inalienable" in section 1.
Convention, at 271. Delegate William McDowell suggested the language in proposed
section 1 created a hierarchy of laws that rendered natural rights absolute and subject to
no limitation under the law:

"MR. MCDOWELL. I think the language of this section is an enunciation of the
higher law principle, that 'the control of a man's person is above and prior to all law and
inalienable.' It is a provision I do not want to see go into any Constitution which we shall
adopt; for if this doctrine is correct, you cannot make a man amenable to any criminal
law." (Emphasis added.) Convention, at 272.

22
Another proslavery delegate, Benjamin Wrigley, professed similar concern:

"I believe that this section, as it now reads, as remarked by the gentleman from
Leavenworth (Mr. McDowell) does embrace the 'higher law' doctrine, and is mischievous
in its character. I believe it was intended to set at defiance, and that it does in fact set at
defiance, the fugitive slave law as a law of the land." Convention, at 274.

As Wrigley's comment illustrated, the subtext of the discussion was primarily
motivated by proslavery delegates' concern that characterizing natural rights as
"inalienable" could preclude enforcement of criminal law, particularly the fugitive slave
law, within Kansas. Therefore, one of the first proposed amendments to section 1—
offered by Wrigley—included the following clause to address concerns that section 1's
text created a hierarchy of law with "absolute" natural rights at the apex.

"'Provided that nothing herein contained shall be construed to apply to any
person lawfully held to or owing service under the Constitution of the United States or
the Constitution and Laws of any other State, or to any person under indictment, or
lawfully under arrest or in custody, or lawfully imprisoned.'" Convention, at 273.

Without this clarifying language, Wrigley claimed section 1 would ensure that "no person
can forfeit his right to liberty under any circumstances." Convention, at 274.

"It matters not how great a criminal a man may be, or how lawfully he may have been
arrested, retained in custody, or arraigned under indictment for a grave offense, you
propose to have here an organic declaration, that this criminal's right to control of his
person is above all law, prior to all law, and inalienable. Now, sir, I contend, that the right
to the control of a man's person is not above the law, prior to law and inalienable. He may
forfeit that right by the commission of crime—and all must agree, that, under such
circumstances, he may be lawfully held in custody, and the control of his person
rightfully and legally taken away from him. Adopt this declaration here, and at once you
abolish the criminal law, and open all your jails." (Emphasis added.) Convention, at 274.

23
McDowell added to the objection, believing the original proposal could lead to an
absurd result—impairing the State's authority to punish crimes:

"[I]f adopted as it now stands, [the original proposal] will simply place us in the attitude
of the commission of this solecism; recognizing somewhere the right and power to punish
crime, yet in the Bill of Rights doing away with every provision of that kind, by asserting
that the control of the person is above, beyond, [and] anterior to all law. . . . Whatever
their notions may be on these questions in relation to the fugitive slave law, let us be
careful, at least, to avoid placing ourselves in an absurd position." Convention, at 276.

Another delegate also offered support for language to avoid this result. See Convention,
at 275.

Consistent with these remarks, Dr. James Blunt offered the following substitute
amendment to modify the natural rights preserved within section 1: "'Except in cases
where the party is charged with crime, or has been convicted thereof.'" Convention, at
276. According to Blunt, the substitute amendment would "remove all doubtful and
dangerous construction that might be put upon the section," though he acknowledged this
would not appease those seeking to protect the fugitive slave law. Convention, at 276-77.

After Blunt's speech, other delegates weighed in on the issue. Delegate William
Griffith explained the term "inalienable" means only that the right cannot be transferred
or assigned, and that the language did not create a hierarchy of law that prevented
punishment for criminal conduct. Griffith explained:

"It seems to me, sir, that this discussion and both amendments are unnecessary, and that
they result from a misconception of the clause in question. I see nothing of any higher-
law doctrine in this section. If it is there, I confess that I have not penetration enough to
discover it. The proposition is, 'that the right of all men to the control of their persons

24
exists prior to law, and is inalienable.' It does not propose that the authority of the State
shall not hold the persons of men if they have committed crime, but simply that this right
exists prior to law, and is inalienable by the person holding it—that is, he cannot sell it or
dispossess himself of it. But, sir, the law of the land regulates this matter entirely."
(Emphasis added.) Convention, at 279-80.

The discussion continued with delegates expressing opposing views as to the
nature and scope of natural rights as set forth in proposed section 1. Convention, at 280-
82. Eventually, Wrigley's proposed amendment was put to a vote and approved. But
immediately thereafter, President James Winchell offered the following substitute:

"'All men are by nature free and equal and possessed of certain rights inalienable by law,
except for the commission of crime, among which rights are life, liberty, the pursuit of
happiness and the acquirement, possession and protection of property.'" Convention, at
282.

Winchell offered the substitute provision as a compromise, believing "there is some
foundation for the arguments . . . if we declare in the fundamental law, that men have
certain rights that are inalienable, we must mean that those rights are inalienable by law."
Convention, at 282.

At this juncture, Samuel Austin Kingman, a delegate who later served as one of
the original members of the Kansas Supreme Court following statehood in 1861 and
Chief Justice from 1867 to 1876, offered the version of section 1 ultimately adopted by
the convention and ratified by electors. See Convention, at 282-85; see also Samuel
Austin Kingman, Kansapedia: Kansas Historical Society,
https://www.kshs.org/kansapedia/samuel-austin-kingman/17072 (professional biography
of Kingman). In advancing what would become the final version of section 1, Kingman
made clear the term "inalienable" has an established legal meaning—referring to a right
or interest that cannot be disposed of by sale or assignment to another but which can be

25
forfeited. In this regard, Kingman explained that inalienable natural rights would not
impair the State's ability to punish individuals for criminal conduct:

"Mr. President, I do not propose to argue this question. I would be willing to vote
for the section as it stands, but I prefer the language of the substitute just offered. But I
hold in my hand a section which I prefer to both of them. I do not propose at this time to
offer it. But I hold that this use of the word 'inalienable,' is misunderstood and
misinterpreted in this House. A man's right to his life is inalienable in law under all
circumstances. He has no right to sell or give it away—no right to dispose of it at all. But
the word 'inalienable' has a fixed meaning in law. And when in the common use of the
word we say, that a man cannot alienate his property, none would suppose we mean to
say, he cannot forfeit his property. We propose, at the proper time, to propose in this
Constitution, that there shall be a homestead set apart to each settler in the State, which
shall be inalienable, but we do not propose to ordain that it shall not be forfeited for debts
due to the State, and so on. I do not like to see this doctrine impinged. I do not like to
depart from old, established usage. Therefore I hope the section which I hold in my hand
will be adopted. By the leave of the Convention I will read it:

'All men are possessed of equal and inalienable natural rights, among which are
those of life, liberty and the pursuit of happiness.'

"These terms, Mr. President, are fixed in the minds of the American people—
they have become traditional. And I offer to strike out and insert this, that the American
feeling might appear in this section. We all cling to old truths, and I love the very forms
of expression in which old truths have been presented. I dislike to change any old truth
from the forms of language to which I have been accustomed. I dislike to see them taken
from the habiliments in which I have so often seen them clothed and put into new and
doubtful phraseology; and our national Declaration of Independence is of this class of
truth. That Declaration of Rights forms a part of our political creed, from which no man
can extricate himself; and I do not wish to change the clothing of these ideas. It is this
feeling that makes a man who has long read one book—as the Bible or Blackstone—
value it a hundred fold above its intrinsic value. This makes a man like to read the
sentiments he cherishes in their original style of expression—makes him like to dwell on

26
the very words that cover the principles he holds closest to his heart. And we should
express these sentiments in few words—sufficient to cover their views and carry their
original force, and whatever goes beyond that is injurious to the sense. I say again, sir, I
love these old forms. They are, it seems to me, as the political Bible of every citizen of
the United States. If you change their language, you mar their beauties—carry the mind
away from the sense, and send it off into reflections on the phraseology and meaning of
these new terms. I think the amendment I have read, in these old terms, is broad enough.
It will show no man's prejudices, and it is broad enough for all to stand upon." (Emphases
added.) Convention, at 282-83.

Kingman's explanation proved to be persuasive, and the convention passed his substitute
proposal by a margin of 42 to 6. Convention, at 285.

This historical record indicates the drafters of section 1 never intended the term
"inalienable" to be construed as "absolute" or "nonforfeitable." Instead, a careful reading
of section 1, coupled with the transcripts of the convention debate, establishes that the
term "inalienable" refers only to one's ability to transfer his or her right or interest to
another person. This construction is consistent with the legal meaning ascribed to the
term "inalienable." See Black's Law Dictionary 683 (5th ed. 1978) (defining "inalienable"
as "[n]ot subject to alienation; the characteristic of those things which cannot be bought
or sold or transferred from one person to another, such as rivers and public highways, and
certain personal rights; e.g., liberty"). Though inalienable, the framers viewed these
natural rights as forfeitable in civil society. So construed, the framers were confident
section 1 could not be used as a device to impede or limit the state's authority to punish
individuals for their criminal conduct.

2. Natural Rights Theory According to Locke and Blackstone

During the Wyandotte Convention debates, the chairman of the Preamble and Bill
of Rights Committee, William Hutchinson, explained that section 1 is designed to declare

27
and protect the "natural rights" of all persons. See Convention, at 281-82. Based on the
established historical record, we have held the framers intended section 1 to incorporate
the "broad concept of natural rights." Hodes, 309 Kan. at 629 ("In short, the drafters . . .
incorporated the broad concept of natural rights" in adopting section 1.).

a. John Locke

The theory of "natural rights" traces its lineage from the writings of John Locke
through the Declaration of Independence, written by Thomas Jefferson, and the Virginia
Declaration of Rights of 1776, written by George Mason. 309 Kan. at 639. Thus,
"Locke's views on natural rights are significant" and offer insight into the framers' intent
in adopting section 1. 309 Kan. at 639.

Locke's theory describes the inherent rights of persons in nature before consenting
to civil governance. According to Locke, in nature all persons are in "a State of perfect
Freedom to order their Actions, and dispose of their Possessions, and Persons as they
think fit, within the bounds of the Law of Nature, without asking leave, or depending
upon the Will of any other Man." Locke, Two Treatises of Government, Bk. II, § 4
(1698). And consistent with such uninhibited personal freedom, the state of nature is also
a state of "Equality, wherein all the Power and Jurisdiction is reciprocal, no one having
more than another." Locke, Bk II, § 4.

In this perfect state of nature, these inherent rights are to be exercised according to
each person's free will and should not be impaired, unless the exercise of these rights
would place another's natural rights in peril:

"The State of Nature, has a Law of Nature to govern it which obliges every one, and
Reason, which is that Law, teaches all Mankind, who will but consult it; That being
all equal and independent, no one ought to harm another in his Life, Health, Liberty,

28
or Possessions; . . . [E]very one as he is bound to preserve himself, and not to quit
his Station wilfully, so by the like reason when his own Preservation comes not in
competition, ought he as much as he can to preserve the rest of Mankind, and not
unless it be to do Justice on an Offender, take away, or impair the life, or what tends
to the Preservation of the Life, the Liberty, Health, Limb or Goods of another." Locke,
Bk. II, § 6.

"Locke's contention that man is endowed with free will means, however, that the
law of nature, though known by reason, is not necessarily universally obeyed." Suess,
Punishment in the State of Nature: John Locke and Criminal Punishment in the United
States of America, 7 Wash. U. Jur. Rev. 367, 377 (2015). Given this reality, "to uphold
natural law . . . the rational man has the right to punish criminals. For if no one had such a
right the law of nature would be in vain." 7 Wash. U. Jur. Rev. at 377.

Locke's justification for punishment in nature was that the offender, by infringing
the natural rights of another, had "declare[d] himself to live by another Rule, than that of
reason and common Equity." Locke, Bk. II, § 8. Such transgressions are "a trespass
against the whole Species." Locke, Bk. II, § 8. Thus, all persons "may restrain, or where
it is necessary, destroy things noxious to them, and so may bring such evil on any one,
who hath transgressed that Law, as may make him repent the doing of it, and thereby
deter him, and by his Example others, from doing the like mischief." Locke, Bk. II, § 8.

Without question Locke viewed the act of murder as a transgression of natural
law, warranting punishment up to and including capital punishment.

"The damnified Person has this Power of appropriating to himself, the Goods or Service
of the Offender, by Right of Self-preservation, as every Man has a Power to punish the
Crime, to prevent its being committed again, by the Right he has of Preserving all
Mankind, and doing all reasonable things he can in order to that end: And thus it is, that
every Man in the State of Nature, has a Power to kill a Murderer, both to deter others

29
from doing the like Injury, which no Reparation can compensate, by the Example of the
punishment that attends it from every body, and also to secure Men from the attempts of
a Criminal, who having renounced Reason, the common Rule and Measure God hath
given to Mankind, hath by the unjust Violence and Slaughter he hath committed upon
one, declared War against all Mankind, and therefore may be destroyed as a Lion or a
Tyger, one of those wild Savage Beasts, with whom Men can have no Society nor
Security." Locke, Bk. II, § 11.

According to Locke, individuals who commit capital offenses forfeit their own
natural rights, including the right to life, through their offensive conduct.

"Indeed having, by his fault, forfeited his own Life, by some Act that deserves Death; he,
to whom he has forfeited it, may (when he has him in his Power) delay to take it, and
make use of him to his own Service, and he does him no injury by it. For, whenever he
finds the hardship of his Slavery out-weigh the value of his Life, 'tis in his Power, by
resisting the Will of his Master, to draw on himself the Death he desires." (Emphasis
added.) Locke, Bk. II, § 23.

This concept of "forfeiture" enables Locke to philosophically justify notions of
punishment that result in the deprivation of the perpetrator's own rights as they would
have existed in nature.

Interestingly, for Locke, the right to life gave rise to a reciprocal duty for a person
to preserve his or her own life. Notwithstanding the vast freedom enjoyed by individuals
in nature, Locke did not believe such freedom granted individuals the power to end one's
own life. Locke, Bk. II, § 23. As a corollary, a person could not alienate that right to
another person because a person did not "hav[e] the Power of his own Life" in the first
place. Locke, Bk. II, § 23. Thus, a person "cannot, by Compact, or his own Consent,
enslave himself to any one, nor put himself under the Absolute, Arbitrary Power of
another, to take away his Life, when he pleases." Locke, Bk. II, § 23. "No body can give

30
more Power than he has himself; and he that cannot take away his own Life, cannot give
another power over it." Locke, Bk. II, § 23.

Consistent with delegate Kingman's commentary regarding the intended scope of
section 1, Locke's natural rights theory recognizes the right to life to be inalienable,
meaning it cannot be sold, transferred, or assigned to another. But the right is not
absolute, as it may be forfeited through acts of criminal conduct that give rise to the
power of punishment.

Even so, Locke's philosophical justification for punishment based on notions of
forfeiture leads to an obvious question: who should impose punishment? Locke observed
"it is unreasonable for Men to be Judges in their own Cases, that Self-love will make Men
partial to themselves and their Friends. And on the other side, that Ill Nature, Passion and
Revenge will carry them to far in punishing others." Locke, Bk. II, § 13. Therefore,
Locke concluded that "Civil Government is the proper Remedy for the Inconveniences of
the State of Nature." Locke, Bk. II, § 13.

According to Locke, individuals do not relinquish their natural rights of life,
liberty, and property merely by entering civil society. Locke, Bk. II, § 87. Instead, they
consent to the same power of punishment that existed in nature. But instead of being
meted out by the victim, punishment (including the death penalty) as it exists in the state
of nature is transferred to, and imposed by, the civil society itself. Locke, Bk. II, § 87.

"Man being born, as has been proved, with a Title to perfect Freedom, and an
uncontrouled enjoyment of all the Rights and Privileges of the Law of Nature, equally
with any other Man, or Number of Men in the World, hath by Nature a Power, not only to
preserve his Property, that is, his Life, Liberty and Estate, against the Injuries and
Attempts of other Men; but to judge of, and punish the breaches of that Law in others, as
he is persuaded the Offence deserves, even with Death it self, in Crimes where the
heinousness of the Fact, in his Opinion, requires it. But because no Political Society can

31
be, nor subsist without having in it self the Power to preserve the Property, and in order
thereunto punish the Offences of all those of that Society: There, and there only is
Political Society, where every one of the Members hath quitted this natural Power,
resign'd it up into the hands of the Community in all cases that exclude him not from
appealing for Protection to the Law established by it. And thus all private judgement of
every particular Member being excluded, the Community comes to be Umpire, by settled
standing Rules; indifferent, and the same to all Parties: And by Men having Authority
from the Community for the execution of those Rules, decides all the differences that
may happen between any Members of that Society, concerning any matter of right, and
punishes those Offences, which any Member hath committed against the Society with
such Penalties as the Law has established; whereby it is easie to discern who are, and
who are not, in Political Society together." (Emphasis added.) Locke, Bk. II, § 87.

b. William Blackstone

Though philosophically consistent with Locke, William Blackstone provided a
more complete description of the contours of natural rights, particularly the right to life,
in his Commentaries on the Laws of England. See Bedau, The Right to Life, 52(4) The
Monist 550, 553 (1968) ("If we were to look for the one thinker from the past whose
writings, in virtue of their antiquity, detail, and influence, have no peer as a source of the
classic doctrine of the right to life, we would have to choose, not Hobbes, Locke,
Rousseau, or Paine, but Sir William Blackstone.").

The United States Supreme Court has recognized Blackstone's influence on the
framers of the United States Constitution:

"Blackstone's Commentaries are accepted as the most satisfactory exposition of
the common law of England. At the time of the adoption of the Federal Constitution, it
had been published about twenty years, and it has been said that more copies of the work
had been sold in this country than in England; so that undoubtedly, the framers of the

32
Constitution were familiar with it." Schick v. United States, 195 U.S. 65, 69, 24 S. Ct.
826, 49 L. Ed. 99 (1904).

Likewise, members of the early state constitutional conventions were so immersed in the
common law as expounded by Blackstone that the language of these constitutions cannot
be well understood without reference to his teachings. See Bader, Some Thoughts on
Blackstone, Precedent, and Originalism, 19 Vt. L. Rev. 5, 7-8 (1994).

Blackstone divided individual rights into two categories: absolute and relative.
1 Blackstone, Commentaries on the Laws of England at 119 (1765). It is important to
recognize Blackstone did not define "absolute" rights in a way that established a higher
order of law (where "absolute" rights would be free from any limitation or infringement,
thereby limiting the authority of the government to exercise the power of criminal
punishment). Instead, his definition of "absolute" rights was consistent with Locke's
characterization of natural rights—those that "appertain and belong to particular men,
merely as individuals or single persons," whereas relative rights "are incident to them as
members of society, and standing in various relations to each other." 1 Blackstone, at
119. "For the most part, the purpose of 'relative' rights (including the right of access to the
courts, the right to petition for the redress of grievances and the right to bear arms) was to
preserve or implement 'absolute' rights in organized communities." Alschuler,
Rediscovering Blackstone, 145 U. Pa. L. Rev. 1, 28 (1996).

In other words, under Blackstone's terminology, absolute rights are those naturally
endowed to persons by the creator:

"The absolute rights of man, considered as a free agent, endowed with
discernment to know good from evil, and with power of choosing those measures which
appear to him to be most desirable, are usually summed up in one general appellation,
and denominated the natural liberty of mankind. This natural liberty consists properly in a
power of acting as one thinks fit, without any restraint or control, unless by the law of

33
nature; being a right inherent in us by birth, and one of the gifts of God to man at his
creation, when he endued him with the faculty of freewill." 1 Blackstone, at 121.

For Blackstone, political or civil liberty—"which is that of a member of society"—
"is no other than natural liberty so far restrained by human laws (and no farther) as is
necessary and expedient for the general advantage of the public." 1 Blackstone, at 121.
Moreover, the purpose of society, and thus government, "is to protect individuals in the
enjoyment of those absolute rights, which were vested in them by the immutable laws of
nature; but which could not be preserved in peace without that mutual assistance and
intercourse which is gained by the institution of friendly and social communities."
1 Blackstone, at 120.

Blackstone "reduced" these natural rights "to three principal or primary articles;
the right of personal security, the right of personal liberty, and the right of private
property." 1 Blackstone, at 125. He included the right to life under the umbrella of the
right of personal security: "The right of personal security consists in a person's legal and
uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation."
1 Blackstone, at 125.

Indeed, foremost in Blackstone's right of personal security was the right to life.
1 Blackstone, at 125. A person's life and limbs were "of such high value," "that it pardons
even homicide if committed se defendendo, or in order to preserve them." 1 Blackstone,
at 126. Whatever a person might do to save life or limb, "is looked upon as done upon the
highest necessity and compulsion." 1 Blackstone, at 126.

Like Locke, and consistent with delegate Kingman's interpretation of section 1,
Blackstone recognized the right to life is not alienable, meaning it cannot be assigned or
transferred to another, but it can be forfeited when a person's criminal conduct
necessitates punishment, up to and including capital punishment, in civil society.

34
"This natural life, being, as was before observed, the immediate donation of the
great creator, cannot legally be disposed of or destroyed by any individual, neither by the
person himself nor by any other of his fellow-creatures, merely upon their own authority.
Yet nevertheless it may, by the divine permission, be frequently forfeited for the breach
of those laws of society, which are enforced by the sanction of capital punishments; of
the nature, restrictions, expedience, and legality of which, we may hereafter more
conveniently enquire in the concluding book of these commentaries. At present, I shall
only observe, that whenever the constitution of a state vests in any man, or body of men,
a power of destroying at pleasure, without the direction of laws, the lives or members of
the subject, such constitution is in the highest degree tyrannical: and that, whenever any
laws direct such destruction for light and trivial causes, such laws are likewise tyrannical,
though in an inferior degree; because here the subject is aware of the danger he is
exposed to, and may by prudent caution provide against it. The statute law of England
does therefore very seldom, and the common law does never, inflict any punishment
extending to life or limb, unless upon the highest necessity; and the constitution is an
utter stranger to any arbitrary power of killing or maiming the subject without the express
warrant of law." (Emphasis added.) 1 Blackstone, at 129.

Commentators interpreting Blackstone and, by extension, Locke have confirmed
this interpretation of inalienable natural rights, i.e., recognizing that inalienable natural
rights may still be forfeited through criminal conduct warranting punishment:

"(a) If punishments of death are necessary for social defense, then the plea of absolute
individual rights will not bar the justifiable imposition of death penalties. But the death
penalty may be justifiably imposed only if the criminal's (right to) life is forfeit for his
crime (sc. one is excused for killing in self-defense because the aggressor forfeits his
right to life). (b) Whenever a person commits a crime, he violates the rights of another.
This in turn entails forfeiture by the criminal of those rights which he violated in his
victim. '[T]he offender, by violating the life or liberty or property of another, has lost his
own right to have his life, liberty, or property respected . . .' The result of (a) and (b) is a
justification of the forfeiture of the absolute right to life." 52(4) The Monist at 568.

35
While Bedau critiques this conclusion, it is, nonetheless, the conclusion that both
Blackstone and Locke reached in formulating their concept of natural rights.

In his discussion of crimes and punishments in Book IV, Blackstone reasons that
in the state of nature, the power or right of punishment is vested in every individual. See
4 Blackstone, at 7.

"It is clear, that the right of punishing crimes against the law of nature, as murder and the
like, is, in a state of mere nature vested in every individual. For it must be vested in
somebody; otherwise the laws of nature would be vain and fruitless, if none were
empowered to put them in execution: and if that power is vested in any one, it must also
be vested in all mankind, since all are by nature equal." 4 Blackstone, at 7.

Blackstone, like Locke, concludes that upon entering civil society, "this right is
transferred from individuals to the sovereign power." 4 Blackstone, at 8.

Blackstone also recognized a distinction between crimes that are mala in se—
wrong or evil in itself—and those that are mala prohibita—"offences of human
institution." 4 Blackstone, at 9. For Blackstone, it was apparent that civil society could
impose capital punishment for crimes that are mala in se.

"With regard to offences mala in se, capital punishments are in some instances inflicted
by the immediate command of God himself to all mankind; as, in the case of murder, by
the precept delivered to Noah, their common ancestor and representative, 'whoso
sheddeth man's blood, by man shall his blood be shed.'" 4 Blackstone, at 9.

36
But for crimes mala prohibita, capital punishment is only justified

"'when offences grow enormous, frequent, and dangerous to a kingdom or state,
destructive or highly pernicious to civil societies, and to the great insecurity and danger
of the kingdom or its inhabitants, severe punishment and even death itself is necessary to
be annexed to laws in many cases by the prudence of lawgivers.'" 4 Blackstone, at 9.

It was not only the frequency or difficulty in preventing a particular mala prohibita crime
that might warrant a penalty of capital punishment, but also its "enormity, or dangerous
tendency" that "alone" might warrant putting the offender to death. 4 Blackstone, at 9.

In sum, both Locke and Blackstone characterized inalienable natural rights,
including the right to life, as forfeitable when criminal conduct warrants punishment, up
to and including death, in civil society. See Locke, Bk. II, § 23; 1 Blackstone, at 129.
This conclusion is consistent with the record of the Wyandotte Convention debates,
where the framers made clear that the natural rights in section 1 are forfeitable in civil
society and cannot impair the state's ability to punish individuals for their criminal
conduct. And both (the teachings of Locke/Blackstone and the record of the Wyandotte
Convention debates) are consistent with the legal definition of the term "inalienable" as
used in section 1.

C. Kansas' Capital Sentencing Scheme Does Not Infringe Upon the Inalienable
Right to Life in Section 1

As noted above, R. Carr claims that section 1 affords him an absolute,
nonforfeitable right to life that precludes capital punishment. However, as discussed more
fully below, our construction of section 1 forecloses this argument. The text and relevant
historical record demonstrate the framers intended section 1's inalienable right to life to
be subject to forfeiture through criminal conduct. Accordingly, R. Carr's and J. Carr's
asserted right to or declared interest in an absolute, nonforfeitable right to life does not

37
fall within the purview of rights protected by section 1. Instead, when a person is
convicted of capital murder beyond reasonable doubt, he or she forfeits the inalienable
right to life under section 1 and the state may impose lawful punishment for that crime.

We adopted a similar rationale in Kleypas I, albeit under a substantially different
legal framework that predated this court's decision in Hodes. See State v. Kleypas, 272
Kan. 894, 136, 40 P.3d 139 (2001) (Kleypas I), cert. denied 537 U.S. 834 (2002),
overruled on other grounds by Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L.
Ed. 2d 429 (2006). There, Kleypas attempted to distinguish section 1 from the Fourteenth
Amendment by highlighting the fact that the text of section 1 does not contain any
limiting language or exception authorizing governmental infringement of natural rights
upon satisfaction of due process requirements. Kleypas I, 272 Kan. at 1051.

"Kleypas argues that, unlike the federal version which does not allow the taking
of life without due process of law, the above language in our state constitution simply
does not contemplate the taking of a life by the State under any circumstances. He
contends that the Kansas Constitution confers upon him an absolute right to life." 272
Kan. at 1051.

The court rejected Kleypas' argument without much discussion. It quoted from the
same constitutional convention debates discussed above in concluding that the right to
life under section 1 does not limit the state's power to impose punishments for crimes.
272 Kan. at 1051-52. The court characterized the argument as "somewhat novel" but
listed a variety of cases from other state courts that had "soundly rejected" similar
challenges. 272 Kan. at 1052 (citing Ruiz v. Arkansas, 299 Ark. 144, 152-53, 772 S.W.2d
297 [1989]; Missouri v. Newlon, 627 S.W.2d 606, 612-13 [Mo. 1982]; Slaughter v.
Oklahoma, 950 P.2d 839, 861-62 [Okla. Crim. App. 1997]). Ultimately, the court decided
Kleypas' argument stretched "the meaning of the venerable words in § 1 of the state Bill

38
of Rights far beyond their intended purpose. This we decline to do." Kleypas I, 272 Kan.
at 1052.

It is no surprise the Kleypas I court focused on the framers' discussion of
"inalienability" in rejecting the section 1 challenge. The delegates' remarks reflect the
framers' intent to construe the term "inalienable" within section 1 consistent with its legal
meaning—a right or interest that cannot be transferred or assigned to another person.
Though inalienable, i.e., nontransferable, an individual may forfeit his or her natural
rights by engaging in criminal conduct that is subject to punishment in civil society.
Therefore, delegate Kingman believed his proposed language for section 1 (which was
ultimately adopted by the convention) would establish the existence of natural rights that
were forfeitable, thereby authorizing the state to impose punishment for criminal conduct
without offense to section 1.

Locke and Blackstone, whose teachings greatly influenced the development of
both federal and state constitutions alike, recognized a similar construction of
"inalienable" natural rights, i.e., that they were subject to forfeiture. Natural rights
theorists generally posited a state of nature that included within it a set of rights that
every individual possessed in that state of nature. But when humans enter civil society,
they relinquish certain powers and rights to the sovereign or government. As discussed
above, the right to impose punishment, up to and including capital punishment, was one
of the rights transferred from the individual to the sovereign. Thus, according to Locke,
Blackstone, and the drafters of the Kansas Constitution, an individual who commits a
crime warranting punishment in civil society forfeits his or her natural rights, thereby
enabling the state to impose just punishment.

After careful examination of the text of section 1, the historical record, and the
documents and writings that inspired the drafters of the Kansas Constitution, we conclude

39
that section 1 recognizes an inalienable right to life, but that right is not absolute or
nonforfeitable. We hold that once a defendant has been convicted of capital murder
beyond a reasonable doubt, the defendant forfeits his or her natural rights under section 1
("among which are life, liberty, and the pursuit of happiness") and the state may impose
punishment for that crime pursuant to Kansas' capital sentencing scheme.

In so holding, we do not mean to suggest the state's power to punish is unabated
upon a defendant's forfeiture of natural rights under section 1. To the contrary, a
defendant is entitled to due process of law throughout the penalty phase proceedings. See,
e.g., Kan. Const. Bill of Rights, § 10. Additionally, the punishment imposed may not be
"cruel or unusual." See, e.g., Kan. Const. Bill of Rights, § 9. But these protections do not
arise under section 1. In fact, where a defendant has been lawfully convicted of capital
murder, the imposition of the capital sentence no longer implicates his or her inalienable
natural rights under section 1. However, other constitutional guarantees, including but not
limited to those contained in sections 9 and 10, continue to regulate the state's authority
to punish and guard against arbitrary applications of such authority. Cf. Chapman v.
United States, 500 U.S. 453, 465, 111 S. Ct. 1919, 114 L. Ed. 2d 524 (1991)
(fundamental right to liberty limits government power to punish prior to jury's verdict of
guilt; thereafter a person "is eligible for, and the court may impose, whatever punishment
is authorized by statute for his offense, so long as that penalty is not cruel and unusual").

For these reasons, R. Carr's and J. Carr's asserted right to, or declared interest in,
an absolute, nonforfeitable right to life is not included within or part of the guarantees
or protections of section 1. Instead, the natural right to life is forfeitable, and the
government's imposition of the death penalty pursuant to Kansas' capital sentencing
scheme does not impair the "inalienable" right to life protected under section 1.
Accordingly, the jury's capital sentencing verdicts in R. Carr's and J. Carr's cases do not
implicate section 1 of the Kansas Constitution Bill of Rights.

40
II. Death Qualification of Jurors Under K.S.A. 22-3410 Does Not Violate Section 5
of the Kansas Constitution Bill of Rights

In an amicus brief filed in J. Carr's case, the NAACP Legal Defense and
Educational Fund, Inc. (LDF) raises a state constitutional challenge to the practice of
"death qualifying" juries in Kansas—the process of removing prospective jurors for
cause, pursuant to K.S.A. 22-3410, when their conscientious objection to capital
punishment substantially impairs their ability to fulfill the oath and obligations of a juror.
Though not raised by R. Carr, the LDF and the State briefed the issue to the court, and we
advised J. Carr and the State to be prepared to address the issue at oral argument.

After oral argument concluded, R. Carr filed a motion requesting the court
consider this section 5 challenge in his appeal. We deny R. Carr's motion because it is an
improper procedural vehicle for advancing this new, state constitutional challenge. See
State v. Cheever, 306 Kan. 760, 774, 402 P.3d 1126 (2017) (Cheever II) (denying similar
motion on instruction issue); State v. Gleason, 305 Kan. 794, 798, 388 P.3d 101 (2017)
(Gleason II) (same). Nevertheless, we address the merits of the claim given our statutory
obligation in capital appeals to both consider "the question of sentence" and "notice
unassigned errors appearing of record if the ends of justice would be served thereby."
K.S.A. 2020 Supp. 21-6619(b); Cheever II, 306 Kan. at 774 (electing to reach merits of
similar issue "[u]nder the unique circumstances of [the] case and in the interest of judicial
economy"); Gleason II, 305 Kan. at 798-99 (same).

Kansas statute authorizes a district judge to remove prospective jurors for cause
where their "state of mind with reference to the case or any of the parties is such that the
court determines there is doubt that [the prospective juror] can act impartially and
without prejudice to the substantial rights of any party." K.S.A. 22-3410(2)(i). Under this
provision, parties in a capital case may successfully challenge prospective jurors for

41
cause if their views on the death penalty prevent or substantially impair the performance
of their duties as jurors. See R. Carr, 300 Kan. at 113-14. The statute is designed to
balance a defendant's due process and jury trial rights with the State's strong interest in
seating jurors who can apply the sentence of capital punishment according to the
framework provided by law. 300 Kan. at 113. Nevertheless, the LDF contends the State's
removal of prospective jurors under this statute violates the right to trial by jury preserved
in section 5 of the Kansas Constitution Bill of Rights.

A. Standard of Review and Legal Framework

As previously noted, constitutional challenges raise questions of law over which
appellate courts have unlimited review. State v. Coleman, 312 Kan. 114, 117, 472 P.3d
85 (2020). To the extent resolution of this issue requires us to interpret the language of
section 5, our review is likewise unlimited. 312 Kan. at 117.

Section 5 of the Kansas Constitution Bill of Rights provides that "[t]he right of
trial by jury shall be inviolate." This court has consistently held that section 5 "'"preserves
the jury trial right as it historically existed at common law when our state's constitution
came into existence"'" in 1859. Albano, 313 Kan. at 641. A section 5 analysis generally
involves two inquiries: (1) "In what types of cases is a party entitled to a jury as a matter
of right?" and (2) "[W]hen such a right exists, what does the right protect?" State v. Love,
305 Kan. 716, 735, 387 P.3d 820 (2017). "Prosecutions for violations of state criminal
statutes unquestionably implicate Section 5." 305 Kan. at 736. Therefore, our analysis
focuses on the scope of that right—that is, does section 5 foreclose death qualification of
jurors under K.S.A. 22-3410?

42
B. The Plain Meaning of the Term "Jury" and the Historical Record Demonstrate
that "Death-Qualification" Under K.S.A. 22-3410 Is Beyond the Scope of
Section 5

To determine the scope of the jury trial right under the Kansas Constitution, it is
first instructive to explore the meaning of the term "jury" as used in section 5. In doing
so, we rely on established rules of constitutional construction:

"In ascertaining the meaning of a constitutional provision, the primary duty of the
courts is to look to the intention of the makers . . . and the adopters . . . of that provision.
A constitutional provision is not to be narrowly or technically construed, but its language
should be interpreted to mean what the words imply to persons of common
understanding. Words in common usage are to be given their natural and ordinary
meaning in arriving at a proper construction. [Citations omitted.]" Board of Leavenworth
County Com'rs v. McGraw Fertilizer Serv., Inc., 261 Kan. 901, 905, 933 P.2d 698 (1997).

When the words themselves do not make the drafters' intent clear, courts look to the
historical record, remembering "'the polestar . . . is the intention of the makers and
adopters.'" Hunt, 150 Kan. at 5; see State ex rel. Stephan v. Finney, 254 Kan. 632, 655,
867 P.2d 1034 (1994). Here, both the plain meaning of the term "jury" and the historical
record each undermine this section 5 challenge.

To ascertain the meaning of the term "jury" under section 5, we first look to the
common, ordinary meaning of this term. Dictionary definitions provide a reliable source
for that meaning. Midwest Crane & Rigging, LLC v. Kansas Corporation Comm'n, 306
Kan. 845, 851, 397 P.3d 1205 (2017). Black's Law Dictionary defines a "jury" as "[a]
group of persons selected according to law and given the power to decide questions of
fact and return a verdict in the case submitted to them." Black's Law Dictionary 1024
(11th ed. 2019). Similarly, the American Heritage Dictionary of the English Language
defines "jury" as "[a] body of persons selected to decide a verdict in a legal case, based

43
upon the evidence presented, after being given instructions on the applicable law." The
American Heritage Dictionary of the English Language 953 (5th ed. 2011); see also
Webster's New World College Dictionary 790 (5th ed. 2014) (defining "jury" as "a group
of people sworn to hear the evidence and inquire into the facts in a law case, and to give a
decision in accordance with their findings").

Thus, we construe the term "jury," as used in section 5, to denote a legally selected
group of persons sworn to determine issues of fact and return a verdict based on the
evidence and the law as instructed. This construction is also in accord with our precedent
defining the traditional function and duty of a Kansas jury. See State v. McClanahan, 212
Kan. 208, 217, 510 P.2d 153 (1973) ("[I]t is the proper function and duty of a jury to
accept the rules of law given to it in the instructions by the court, apply those rules of law
in determining what facts are proven and render a verdict based thereon."); see also State
v. Boeschling, 311 Kan. 124, 130, 458 P.3d 234 (2020) (recognizing same traditional
functions and duties of jury).

Under this plain meaning interpretation, section 5's right to trial by jury does not
prohibit the state from death qualifying juries. Importantly, K.S.A. 22-3410 does not
permit the removal of any or all prospective jurors who have conscientious objections to
the death penalty. The death qualification process is constrained by the Eighth
Amendment to the United States Constitution, which prohibits the state from excluding
jurors in capital trials "simply because they voiced general objections to the death penalty
or expressed conscientious or religious scruples against its infliction." Witherspoon v.
Illinois, 391 U.S. 510, 522, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). Instead, the State
may only remove those prospective jurors whose opposition to the death penalty "would
'prevent or substantially impair the performance of [their] duties as [jurors] in accordance
with [their] instructions and [their] oath[s].'" Wainwright v. Witt, 469 U.S. 412, 424, 105
S. Ct. 844, 83 L. Ed. 2d 841 (1985).

44
In other words, death qualification eliminates only those prospective jurors who
cannot decide issues of fact and reach a decision based on the evidence presented and the
law as instructed—i.e., those persons who are unable to fulfill the traditional functions
and duties of a Kansas jury. And, as established above, the plain meaning of the term
"jury," as used in section 5, excludes these types of prospective jurors from its definition.
In this regard, the process of death qualification under K.S.A. 22-3410 facilitates the very
trial by "jury" that section 5 guarantees.

C. Death Qualification Does Not Implicate Section 5 Because the Common Law
Did Not Prohibit the Practice When the Kansas Constitution Was Adopted in
1859

Furthermore, the LDF concedes that when our state Constitution was adopted, the
common law permitted a trial judge to remove individuals whose conscientious scruples
against the death penalty would substantially impair their ability to perform the oath and
duties of a juror. However, the LDF asserts this common-law rule arose from
circumstances peculiar to the structure of capital trials at the time.

Historically, neither the jury nor the trial judge possessed sentencing discretion in
capital trials—once convicted, a judge sentenced the defendant to death as a matter of
law. See Novak, The Role of Legal Advocates in Transnational Judicial Dialogue: The
Abolition of the Mandatory Death Penalty and the Evolution of International Law, 25
Cardozo J. Int'l & Comp. L. 179, 210 (2017) ("At common law, the mandatory death
penalty shifted sentencing discretion from a trial judge to a clemency authority."). Thus, a
death-scrupled juror could only circumvent the death penalty by acquitting a defendant,
regardless of what the evidence established or the law required. The LDF speculates that
death-scrupled jurors were thus disqualified at common law for a very narrow reason—
the need to ensure the fair adjudication of the defendant's guilt. The LDF contends this

45
rationale no longer applies to Kansas' modern capital sentencing scheme, which requires
a bifurcated trial with separate guilt and sentencing phases. As such, the LDF concludes
that section 5 no longer authorizes death qualification under K.S.A. 22-3410.

We question the LDF's narrow characterization of the rationale behind the
common-law rule and the dubious assertion it has no application to Kansas' current
capital sentencing scheme. More fundamentally, however, the LDF's argument fails to
demonstrate how death qualification under K.S.A. 22-3410 offends any jury trial right
protected under section 5. Instead, the LDF's argument is founded on the mistaken
premise that section 5 authorizes the Legislature to create or modify juror qualification
and selection standards only if such legislation is affirmatively authorized by common
law (and the original rationale underlying it). But there is no support for this proposition.
In fact, the premise is simply incorrect.

Section 5 does not define the constitutional scope of legislative power. Instead,
such powers are defined in article 2 of the Kansas Constitution. State ex rel. Morrison v.
Sebelius, 285 Kan. 875, 898, 179 P.3d 366 (2008) ("Article 2 of the Kansas Constitution
gives the legislature the exclusive power to pass, amend, and repeal statutes."). Section 5
limits the Legislature's exercise of article 2 powers only when an act conflicts with or
limits a jury trial right that existed at common law when the Kansas Constitution was
adopted in 1859. See Jansky v. Baldwin, 120 Kan. 332, 334, 243 P. 302 (1926) ("Since
the people have all governmental power, and exercise it through the legislative branch
of the government, the legislature is free to act except as it is restricted by the state
constitution."); Atchison Street Rly. Co. v. Mo. Pac. Rly. Co., 31 Kan. 660, 665, 3 P. 284
(1884) (Kansas Constitution Bill of Rights limits legislative power where act "trenches
upon the rights guaranteed by them, or which conflicts with any limitation expressed in
them."); see also Love, 305 Kan. at 735 (rejecting defendant's argument that "because

46
juries were instructed on lesser included offenses at common law, the practice was frozen
for all time" as "an overbroad interpretation of Section 5 and its protections").

As established above, the parties agree that the prevailing common law in 1859
permitted death qualification, and Kansas' territorial laws were consistent with this
common-law rule. Kan. Terr. Stat. 1859, ch. 27, § 179. The LDF fails to identify any
common-law rule in Kansas that prohibited death qualification at the time our
Constitution was adopted in 1859. See Prouty v. Stover, 11 Kan. 235, 256 (1873) ("The
mere silence of the constitution on any subject cannot be turned into a prohibition.").
Therefore, death qualification under K.S.A. 22-3410 does not violate section 5. See
Kimball and others v. Connor, Starks and others, 3 Kan. 414, 432 (1866) ("Trial by jury
is guaranteed only in those cases where that right existed at common law.").

Quoting State v. Peterson, No. 116,931, 2018 WL 4840468, at *1 (Kan. App.
2018) (unpublished opinion), the LDF asserts that "'citizens called for jury duty have a
constitutional right to serve if they are otherwise qualified.'" (Emphasis added.) This
unpublished Court of Appeals decision fails to advance the LDF's section 5 claim.
Peterson addressed a challenge brought under the Equal Protection Clause of the United
States Constitution, not section 5. Also, Peterson does not identify any common-law right
incorporated into section 5 that would prohibit death qualification pursuant to K.S.A. 22-
3410. Moreover, Peterson acknowledges that potential jurors must still be qualified to
serve—that is, jurors must be able to fulfill the traditional functions and duties of a
Kansas jury. 2018 WL 4840468, at *1. And, as established above, the term "jury," as
used in section 5, excludes potential jurors who cannot fulfill these traditional functions
due to their conscientious objection to the death penalty.

47
D. The Lack of Factual Findings Forecloses Our Review of the Disparate Impact
Challenge

Finally, the LDF claims death qualification disparately impacts the racial
composition and biases of juries in capital sentencing proceedings, contrary to R. Carr's
section 5 right to trial by jury. Specifically, the LDF argues death qualification
disproportionately excludes Black venirepersons and produces a jury with higher levels
of implicit and explicit racial bias; and such juries are "'disproportionately guilt-prone
and death-prone.'"

These allegations most certainly warrant careful analysis and scrutiny. But the
issue—whether death qualification disparately impacts the racial composition of the jury
or its propensity to convict and sentence a defendant—raises a question of fact. Indeed,
the LDF cites several empirical studies to support its claims.

However, the issue was not raised or developed at trial. As a result, the district
court made no factual findings related to the LDF's claim. "'[A]ppellate courts do not
make factual findings but review those made by district courts.'" State v. Reed, 300 Kan.
494, 513, 332 P.3d 172 (2014). And the absence of such findings precludes us from
conducting any meaningful review of this issue. See State v. Wright, 305 Kan. 1176,
1179, 390 P.3d 899 (2017) (lack of factual findings precluded meaningful review of
harmless error analysis of constitutional challenge).

This holding is bolstered by our previous decision in R. Carr, where we affirmed
the district court's rulings on the for-cause challenges R. Carr had raised on appeal. In
other words, we previously determined that substantial competent evidence supported the
district court's conclusion that the individuals empaneled as members of R. Carr's jury
were impartial and qualified. R. Carr, 300 Kan. at 114-24. This holding, which is now the
law of the case, further suggests the sentence of death was not imposed under the

48
influence of passion, prejudice, or any other arbitrary factor, including the State's ability
to death qualify jurors under K.S.A. 22-3140. See K.S.A. 2020 Supp. 21-6619(c)(1)
(requiring court to determine whether sentence was imposed under such improper
circumstances).

In sum, both the plain meaning and historical record confirm that a "jury" is
defined as a group comprised of persons who will determine issues of fact and return a
decision based on the evidence and in accordance with the law as instructed. Death
qualification under K.S.A. 22-3410, as limited by the Eighth Amendment to the United
States Constitution, removes only those prospective jurors who cannot fulfill these
obligations due to conscientious objection to the death penalty, i.e., the statute authorizes
removal of those prospective jurors excluded from the constitutional definition of a
"jury." Thus, death qualification facilitates the very jury trial right guaranteed by section
5. Moreover, when the Kansas Constitution was adopted in 1859, the common law did
not preclude, and in fact authorized, this procedure. For these reasons, we hold that death
qualification under K.S.A. 22-3410 does not violate section 5.

III. The Motion and State Law Challenge to the Mitigating Circumstances Instruction

Having resolved the challenges raised under the Kansas Constitution, we next
address R. Carr's pending motion to apply state law to the burden-of-proof jury
instruction for mitigating circumstances. This equivalent federal constitutional issue
was designated P10 in our earlier decision. R. Carr, 300 Kan. at 256, 302-03.

We deny the motion but reach the claim's merits. We hold that an instruction on
the burden of proof for mitigating circumstances is not required under state law,
overturning the holding in Cheever II, 306 Kan. 760, Syl. ¶ 5, that K.S.A. 21-4624(e),
now codified as K.S.A. 2020 Supp. 21-6617(e), requires such an instruction.

49
A. Standard of Review and Legal Framework

We apply a four-step analysis to review jury instruction challenges:

"(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review;
(2) next, the court should use an unlimited review to determine whether the instruction
was legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless, utilizing the test and
degree of certainty set forth in [State v. ]Ward." State v. Plummer, 295 Kan. 156, 163,
283 P.3d 202 (2012).

To the extent the legal appropriateness of the instruction requires statutory interpretation
of K.S.A. 21-4624(e), we review that issue de novo. See State v. Harris, 311 Kan. 816,
821, 467 P.3d 504 (2020).

B. Discussion of the Motion and Underlying Merits

In its earlier decision, the court relied on Gleason I, 299 Kan. at 1196-98, to
provide guidance for the burden-of-proof instruction issue on remand. The court advised
that a district judge in Kansas must instruct a penalty-phase jury that the existence of
mitigating factors need not be proved beyond a reasonable doubt. R. Carr, 300 Kan. at
302-03. The court noted further that the failure to give this instruction would have
required it to vacate R. Carr's death sentence on Eighth Amendment grounds, were it not
already doing so because of the failure to sever. 300 Kan. at 303.

50
In Kansas v. Carr, the United States Supreme Court held the Eighth Amendment
does not require the instruction. 577 U.S. at 122. Thereafter, R. Carr filed his motion with
our court, arguing the instruction is compulsory under state law and the district court's
failure to give it was reversible error. R. Carr claimed we had effectively made that state
law determination in Gleason I and nothing in the United States Supreme Court's opinion
prevented this holding under state law. He also argued the instructions created a
"reasonable likelihood" the jurors applied a beyond-a-reasonable-doubt standard to his
proffered mitigation evidence when considered as a whole.

We deny R. Carr's motion because it is an inappropriate procedural vehicle to
advance this new, state-law instructional issue. See Cheever II, 306 Kan. at 774 (denying
similar motion on same instruction issue); Gleason II, 305 Kan. at 798 (same).
Nevertheless, we address the merits of the claim given our statutory obligation in capital
appeals to both consider "the question of sentence" and "notice unassigned errors
appearing of record if the ends of justice would be served thereby." K.S.A. 2020 Supp.
21-6619(b); Cheever II, 306 Kan. at 774 (electing to reach merits of similar issue
"[u]nder the unique circumstances of [the] case and in the interest of judicial economy");
Gleason II, 305 Kan. at 798-99 (same).

Turning to the merits, we conclude the failure to give the instruction was not error
under Kansas law. Granted, under the first component of the four-part framework, both
R. Carr and J. Carr preserved this challenge by requesting the mitigating circumstances
burden-of-proof instruction at trial. See State v. Perez, 306 Kan. 655, 667-68, 396 P.3d
78 (2017) (holding first step satisfied when defendant challenged on appeal district
court's failure to give requested instruction).

51
But our resolution of the issue turns on whether step two is also satisfied—i.e.,
whether the instruction as given is legally appropriate. State v. Pabst, 273 Kan. 658, 659,
44 P.3d 1230 (2002) (focusing analysis on whether instruction given fairly and accurately
stated the law as applied to the facts of the case where requested instruction denied). In
Cheever II, a majority of the court held that K.S.A. 21-4624(e) "provides greater
protection to a death-eligible defendant than required by the federal Constitution. In
Kansas, a capital jury must be instructed that mitigating circumstances need not be
proved beyond a reasonable doubt." 306 Kan. 760, Syl. ¶ 5. Although this court had not
previously addressed the burden-of-proof issue as a matter of state law, the Cheever II
court concluded that pronouncements in Kleypas I, although dicta, had recognized a
construction of the statute that requires a capital sentencing jury be instructed that
mitigating circumstances need not be proven beyond a reasonable doubt. Cheever II,
306 Kan. at 784; see Kleypas I, 272 Kan. at 1078. The court acknowledged that the
earlier rulings had been framed in the context of federal constitutional claims (claims that
were subsequently rejected by the Kansas v. Carr Court), but nonetheless concluded that
state statute independently required such an instruction. The court reiterated this position
in Gleason II, 305 Kan. at 798-806.

Despite this court's previous pronouncements, we revisit the issue today, and we
conclude that the district judge's instructions to R. Carr and J. Carr's jury correctly stated
the law. We recognize "[t]he doctrine of stare decisis provides that 'points of law
established by a court are generally followed by the same court and courts of lower rank
in later cases in which the same legal issue is raised.'" State v. Clark, 313 Kan. 556, 565,
486 P.3d 591 (2021). Application of the doctrine promotes stability within the legal
system, and "'we do not lightly disapprove of precedent.'" 313 Kan. at 565. But "'"stare
decisis is not an inexorable command."'" 313 Kan. at 565 (quoting State v. Hambright,
310 Kan. 408, 416, 447 P.3d 972 [2019]). Where, as here, we are convinced that the
original holding is neither sound nor firmly entrenched, it is incumbent on the court to

52
correct it. See McCullough v. Wilson, 308 Kan. 1025, 1036, 426 P.3d 494 (2018)
(acknowledging this court's authority to overturn precedent where rule of law erroneous
or no longer sound).

The challenged instruction provides:

"The State has the burden to prove beyond a reasonable doubt that there are one
or more aggravating circumstances and that they outweigh mitigating circumstances
found to exist."

The jury was also instructed that each member can decide what circumstances are
mitigating and that unanimity is not required in that regard:

"The determination of what are mitigating circumstances is for you as jurors to
decide under the facts and circumstances of the case. Mitigating circumstances are to be
determined by each individual juror when deciding whether the State has proved beyond
a reasonable doubt that the death penalty should be imposed. The same mitigating
circumstances do not need to be found by all members of the jury in order to be
considered by an individual juror in arriving at his or her sentencing decision."

Similarly, the instruction describing the verdict forms reiterated these basic points.

"When considering an individual defendant, if you find unanimously beyond a
reasonable doubt that there are one or more aggravating circumstances and that they
outweigh mitigating circumstances found to exist, then you shall impose a sentence of
death. If you sentence the particular defendant to death, you must designate upon the
appropriate verdict form with particularity the aggravating circumstances which you
unanimously find beyond a reasonable doubt. That is Verdict Form (1).

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"If you find that the evidence does not prove any of the claimed aggravating
circumstances beyond a reasonable doubt, your presiding juror should mark the
appropriate verdict form. That is Verdict Form (2). The court will fix a proper sentence
for the particular defendant.

"If one or more jurors is not persuaded beyond a reasonable doubt that
aggravating circumstances exist or that those found to exist do not outweigh mitigating
circumstances, then you should sign the appropriate alternative verdict form indicating
the jury is unable to reach a unanimous verdict sentencing the defendant to death. That is
Verdict Form (3). In that event, the court will fix a proper sentence for the particular
defendant."

When reviewing the legal propriety of penalty phase instructions addressing
mitigating circumstances, we must consider whether the instructions, considered together
as a whole, fairly and accurately state the applicable law and "whether a jury could have
been misled into not considering certain mitigating circumstances that, by law, should
have been considered." Gleason II, 305 Kan. at 820 (Stegall, J., concurring); see also
In re Care and Treatment of Quillen, 312 Kan. 841, 849, 481 P.3d 791 (2021) ("When
reviewing jury instruction challenges, we consider '''jury instructions as a whole . . . to
determine whether they properly and fairly state the applicable law or whether it is
reasonable to conclude that they could have misled the jury."'").

K.S.A. 21-4624(e) establishes the law governing the jury's consideration of
aggravating and mitigating circumstances during the penalty phase:

"If, by unanimous vote, the jury finds beyond a reasonable doubt that one or
more of the aggravating circumstances enumerated in K.S.A. 21-4625 and amendments
thereto exist and, further, that the existence of such aggravating circumstances is not
outweighed by any mitigating circumstances which are found to exist, the defendant shall
be sentenced to death; otherwise, the defendant shall be sentenced to life without the
possibility of parole. The jury, if its verdict is a unanimous recommendation of a sentence

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of death, shall designate in writing, signed by the foreman of the jury, the statutory
aggravating circumstances which it found beyond a reasonable doubt. If, after a
reasonable time for deliberation, the jury is unable to reach a verdict, the judge shall
dismiss the jury and impose a sentence of imprisonment of life without the possibility of
parole and shall commit the defendant to the custody of the secretary of corrections. In
nonjury cases, the court shall follow the requirements of this subsection in determining
the sentence to be imposed." K.S.A. 21-4624(e); see also K.S.A. 2020 Supp. 21-6617(e)
(same).

The challenged instruction was patterned after this court's then-controlling interpretation
of K.S.A. 21-4624(e). See Kleypas I, 272 Kan. 894, Syl. ¶¶ 45-58 (holding equipoise
weighing equation favoring State unconstitutional, reformulating language to require
aggravating circumstances outweigh mitigating circumstances), overruled by Marsh, 278
Kan. at 544-45. Thus, the instruction properly and fairly stated the law governing
mitigating circumstances in Kansas. Cf. State v. Woods, 222 Kan. 179, 183, 563 P.2d
1061 (1977) (generally, "an instruction patterned after the statute is valid").

Furthermore, there is no reasonable likelihood the instruction misled jurors and
prevented them from considering relevant mitigating evidence as required under K.S.A.
21-4624(e). As the United States Supreme Court observed:

"The instruction makes clear that both the existence of aggravating circumstances and the
conclusion that they outweigh mitigating circumstances must be proved beyond a
reasonable doubt; mitigating circumstances themselves, on the other hand, must merely
be 'found to exist.' . . . 'Found to exist' certainly does not suggest proof beyond a
reasonable doubt. . . . Not once do the instructions say that defense counsel bears the
burden of proving the facts constituting a mitigating circumstance beyond a reasonable
doubt—nor would that make much sense, since one of the mitigating circumstances is
(curiously) 'mercy,' which simply is not a factual determination." Carr, 577 U.S. at 121.

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For these reasons, "no juror would reasonably have speculated that mitigating
circumstances must be proved by any particular standard, let alone beyond a reasonable
doubt." 577 U.S. at 122. Under the same logic, the challenged instruction did not impede
jurors from considering appropriate mitigation under K.S.A. 21-4624(e). Although
R. Carr's proposed instruction might also be legally correct, it is not an indispensable part
of communicating to the jury the process by which it should carry out its deliberations
under state law.

The instructions viewed together as a whole correctly and clearly informed the
jurors of the law governing their consideration of mitigating circumstances. Accordingly,
we find no error in the instructions as given. See State v. McDaniel, 306 Kan. 595, 616,
395 P.3d 429 (2017) ("The trial court did not err by failing to instruct the jury with the
additional language [defendant] request[ed] because the instruction given fairly and
accurately stated the law and accordingly was legally appropriate.").

IV. The Remaining Penalty Phase Issues

Having resolved R. Carr's state constitutional challenge and his motion to consider
the instructional challenge under state law, our analysis turns to the remaining penalty
phase issues raised by the defendants.

A. P1/21—Severance

In the court's previous decision, it considered whether the district court should
have severed the trial's guilt phase under Kansas law. R. Carr, 300 Kan. at 93-94 (citing
K.S.A. 22-3202[3]; K.S.A. 22-3204; State v. Davis, 277 Kan. 231, 239, 83 P.3d 182
[2004] [listing five factors employed to determine whether prejudice sufficient to
mandate severance]). It concluded the district court erred in denying defendants' repeated

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requests to sever. R. Carr, 300 Kan. at 95-97 (defendants had antagonistic defenses;
evidence in favor of one defendant admissible in separate trial not allowed in joint trial).
But a majority held the error was harmless in the guilt phase due to the overwhelming
strength of the evidence against the defendants. 300 Kan. at 100-01; J. Carr, 300 Kan. at
356.

The court separately analyzed whether the failure to sever penalty-phase
proceedings violated R. Carr's right to an individualized capital sentencing determination
under the Eighth Amendment to the United States Constitution. R. Carr, 300 Kan. at 275-
82. Utilizing factors similar to those relied on for the guilt-phase severance analysis
(antagonistic nature of mitigation cases, admission of evidence by one defendant not
likely to have been admitted in severed trial), it concluded that the failure to sever the
penalty-phase proceedings violated the Eighth Amendment. The court vacated the death
sentences and remanded the case to the district court because it was unable to find
beyond a reasonable doubt that the error had little, if any, likelihood of changing the
jury's ultimate conclusion regarding the weight of the aggravating and mitigating
circumstances, in light of the record as a whole. 300 Kan. at 281-82; J. Carr, 300 Kan.
at 371.

The United States Supreme Court rejected our court's Eighth Amendment analysis
in favor of a due process framework:

"As we held in Romano v. Oklahoma, 512 U.S. 1 (1994), it is not the role of the Eighth
Amendment to establish a special 'federal code of evidence' governing 'the admissibility
of evidence at capital sentencing proceedings.' Id., at 11-12. Rather, it is the Due Process
Clause that wards off the introduction of 'unduly prejudicial' evidence that would
'rende[r] the trial fundamentally unfair.' Payne v. Tennessee, 501 U.S. 808, 825 (1991);
see also Brown v. Sanders, 546 U.S. 212 (2006)." Carr, 577 U.S. at 123.

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And it concluded without reservation that the district court's failure to sever did not
violate the defendants' constitutional protections under the Due Process Clause:

"In light of all the evidence presented at the guilt and penalty phases relevant to
the jury's sentencing determination, the contention that the admission of mitigating
evidence by one brother could have 'so infected' the jury's consideration of the other's
sentence as to amount to a denial of due process is beyond the pale." 577 U.S. at 124.

With the federal question answered, on remand we invited the parties to address
whether state law required the district court to sever the penalty-phase proceedings. We
directed them to designate the severance issue as P21, even though it was designated P1
in our previous decision.

R. Carr contends this court already decided the penalty-phase severance issue
under state law by applying the state-law severance standard to reach its Eighth
Amendment conclusion. The State urges us to reevaluate that conclusion in light of the
United States Supreme Court's unequivocal assessment that "[o]nly the most extravagant
speculation would lead to the conclusion that the supposedly prejudicial evidence
rendered the Carr brothers' joint sentencing proceeding fundamentally unfair." 577 U.S.
at 126. The State submits the same logic applies under state law. Like R. Carr, the State
treats the state-law penalty phase severance question as an issue distinct from the guilt-
phase severance issue.

J. Carr takes a different tack and suggests the question on remand is whether
the state law-based failure to sever during the guilt phase resulted in prejudice in the
sentencing phase. Or, as J. Carr puts it, "there is no basis in state law for this Court to
hold that the district court's failure to sever the trials ceased to be an error once the
sentencing phase of trial began."

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We agree with J. Carr's framing of the issue. This court previously held that the
trial court's refusal to sever the defendants' trials during the guilt phase constituted error
under Kansas law. R. Carr, 300 Kan. at 97. This holding was not disturbed by the United
States Supreme Court's subsequent opinion in Kansas v. Carr. As such, this holding is
now the law of the case for purposes of this appeal. State v. Cheeks, 313 Kan. 60, 66, 482
P.3d 1129 (2021) (Under the law of the case doctrine, when a second appeal is brought to
this court in the same case, the first decision is the settled law of the case on all questions
involved in the first appeal, and reconsideration will not normally be given to such
questions.). The improper joinder of the defendants did not cease to be error at the
commencement of the penalty phase.

Accordingly, we hold today that this error continued into the penalty phase. That
said, the error does not require reversal of R. Carr's death sentence. We conclude there is
no reasonable probability this error affected the death sentence verdict. State v. Ward,
292 Kan. 541, 565, 256 P.3d 801 (2011).

As an error carried over from the trial's guilt phase, our penalty-phase harmless
error analysis necessarily begins with reviewing what circumstances caused us to
conclude there was error. In R. Carr, we held a state-law error occurred when the district
judge abused his discretion by refusing to sever the guilt phase trials. Reviewing the
factors supporting severance, we noted only two cut in defendants' favors. The first was
the defendants' antagonistic defenses that emphasized the strength of the evidence against
the other. We described this as "[e]ach . . . [doing] his best to deflect attention from
himself on the Birchwood crimes by assisting in the prosecution of the other." R. Carr,
300 Kan. at 95. The second was the conclusion that the joint trial resulted in the exclusion
of evidence each defendant could have used to bolster his antagonistic identity defense.
See 300 Kan. at 97.

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In deciding the district judge abused his discretion in denying severance, our court
cited two mistakes of law: failing to perform the necessary analysis when ruling on the
issue at a pretrial hearing; and ruling based on an incorrect view that defendants'
incriminating statements, inadmissible during the joint guilt-phase trial, would also be
inadmissible during separate trials. 300 Kan. at 97-98. We also observed

"an abuse of discretion in the dearth of record support for Judge Clark's virtually
indistinguishable, nearly completely unexplained rulings over time, even though the
conflict between the defendant's theories became more and more clear and the pile of
evidence that would be excluded because of the joint trial grew ever taller. Given Judge
Clark's continuing duty to carefully consider severance to avoid prejudice to a defendant,
and the overriding status of the defendant's right to fair trial, Judge Clark's decisions were
progressively unreasonable." 300 Kan. at 98.

But we held the error did not require reversal. "Although its path to R. Carr's
convictions was made somewhat smoother and straighter by the judge's related guilt
phase errors on severance and on third-party evidence and hearsay, the State presented
compelling evidence of R. Carr's guilt, all of which would have been admissible in a
severed trial." 300 Kan. at 100-01. Like the finding of error itself, this court's holding—
that the failure to sever did not contribute to the jury's guilt-phase verdict—is also settled
law for purposes of this appeal under the law of the case doctrine.

Therefore, today, we must determine whether this error, which was harmless in
the guilt phase, so prejudiced defendants in the penalty phase that we must vacate their
capital sentences. We place the burden of demonstrating harmlessness on the party
benefitting from the error, i.e., the State. 300 Kan. at 95 (evolving caselaw generally
places burden demonstrating harmlessness on party benefitting from error). Because
the error arises under state law, the State's burden is to show there is no reasonable
probability the error affected the jury's ultimate conclusion regarding the death sentence
verdict. See K.S.A. 2020 Supp. 60-261; Ward, 292 Kan. at 569.

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Though we now consider the severance issue under state law, the United States
Supreme Court's assessment of this issue under federal law remains instructive and
continues to inform our reversibility analysis. The higher Court concluded that the
brothers did not even raise an Eighth Amendment problem by arguing they were
prejudiced by mitigation evidence that would have been inadmissible in severed
proceedings. Instead, their argument is subject to due process analysis because "it is the
Due Process Clause that wards off the introduction of 'unduly prejudicial' evidence that
would 'rende[r] the trial fundamentally unfair.'" Carr, 577 U.S. at 123. Thus, the proper
question was not whether the "right to an individualized sentencing determination was
fatally impaired" by the failure to sever, but "whether the evidence 'so infected the
sentencing proceeding with unfairness as to render the jury's imposition of the death
penalty a denial of due process.'" 577 U.S. at 123-24; see R. Carr, 300 Kan. at 281.

Notably, "[t]he mere admission of evidence that might not otherwise have been
admitted in a severed proceeding does not demand the automatic vacatur of a death
sentence." Carr, 577 U.S. at 124. Although the higher Court focused on the question of
error rather than harmlessness, its analysis leaves little room to conclude the failure to
sever requires reversal now as a state-law error. The higher Court rejected all notion that
the failure to sever had any impact on the jury's penalty-phase verdict. See 577 U.S. at
126 (holding "[i]t is beyond reason to think that the jury's death verdicts were caused by"
allegedly prejudicial evidence in light of the evidence of the "almost inconceivable
cruelty and depravity" of the defendants' acts). Indeed, it essentially concluded the
defendants' argument was so weak that even assuming witness statements found in police
reports had been erroneously admitted without opportunity for confrontation, "We are
confident that [allowing defendants] cross-examination regarding these police reports
would not have had the slightest effect upon the sentences." 577 U.S. at 126. For us to
conclude that there is a reasonable probability the antagonistic evidence affected the

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jury's death sentence verdict, we would have to reject the higher Court's assessment that
even such a possibility was "beyond reason." Neither the record nor the parties briefing
offer any basis for our court to question the conclusion of the United States Supreme
Court.

The United States Supreme Court's assessment, coupled with the strength of the
State's penalty-phase evidence (discussed more fully below in our cumulative error
analysis), demonstrates that the state-law severance error was harmless.

B. P2—Notice of Aggravating Circumstances

R. Carr next alleges the State failed to give him constitutionally sufficient notice
of the aggravating factors it intended to rely on to seek the death penalty, despite
complying with K.S.A. 21-4624(a)'s notice requirements. In its previous decision, the
court rejected the argument under its established precedent. R. Carr, 300 Kan. at 282; see
State v. Scott, 286 Kan. 54, 101-02, 183 P.3d 801 (2008) (holding statutorily compliant
notice of intent to seek death penalty is sufficient to give defendant meaningful
opportunity to respond to statutory aggravating factors).

Neither R. Carr nor J. Carr submit any additional authority causing us to
reconsider that decision. Under the law of the case, we continue to hold that R. Carr had
constitutionally sufficient notice of the aggravating factors the State intended to pursue.
See Cheeks, 313 Kan. at 66.

C. P3—Channeling of Jury's Discretion

J. Carr originally challenged whether the four aggravating circumstances asserted
by the State adequately channeled the jury's discretion in arriving at the death sentence.

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The constitutional overbreadth challenge was noticed as an unassigned error in R. Carr's
appeal under K.S.A. 2020 Supp. 21-6619(b).

We rejected the challenge, explaining:

"We have rejected the defense arguments advanced here on each of the four
aggravators, when those arguments were made on behalf of other death penalty
defendants. See State v. Scott, 286 Kan. at 108-10 (rejecting argument on multiple
murder, monetary gain); State v. Kleypas, 272 Kan. at 1025 (rejecting argument on
avoidance of arrest; especially heinous, atrocious, cruel

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6105527. Public record. Not legal advice.